Reality Testing -- What Do You Expect from a Collaborative Divorce?

If you are thinking about using Collaborative Law to get a divorce, it's a good idea to be aware of what you are expecting and it would be very helpful to your attorney if you discussed your expectations for the process.

Do you have great expectations about Collaborative Divorce?  Are you expecting any of the following?

1. It should be an easy experience.  "Easy" is a little like "fair" -- it's a subjective term and everyone sees it a little differently.  In general, you should keep in mind that this is still a divorce, with lots of emotions.  You are un-doing years of marriage and many decisions made over the years.  Divorce is rarely "easy", no matter which process is used.

2. It should be quick.  Again, "quick" or fast is relative.  No divorce with significant children's issues or substantial property can be quick.  There's a lot at stake and we all have to be careful to make sure the best results are obtained by everyone.

3.  It should be painless.  Again, this is a divorce.  Divorces are rarely painless.  We do have an advantage in Collaborative Divorces because we use a neutral therapist and a neutral financial who help the process run better and with less conflict than many litigated divorces.  There's bound to be some pain in ending the marriage, but it will generally be much less painful, just not quite painless.

4.  It should be cheap.  In a similar vein, a Collaborative Divorce is probably less expensive than  many or most litigated cases, but it can still cost a substantial amount.  The more complicated the
issues, the more meetings and preparation are required.  That also means the cost increases.  Keep in mind that complicated cases are definitely more expensive in litigation. Collaborative may not be cheap, but it's a wise expense.

5.  You should get everything you want.  That never happens, regardless of the process.  However, in Collaborative Divorces, we do make an effort to focus on what both sides want and need.  We do try to obtain as much of those results as possible. We probably come closer to getting what you want than would happen if we just left everything up to a Judge.

6. The lawyers will handle everything for you.  Not true.  We help you determine your goals and needs, and we help you prepare for meetings and discussions. We do some background work with the other professionals.  But, the parties have a major role throughout the process and they speak up directly in our meetings.  This is not a passive process for the clients. The result is that the parties have much more influence on the final outcome of the case.

7.  You should come out of the divorce with the same standard of living that you experienced while married.  That's not likely in most cases.  We usually still have the same size pie to be divided now into two households, rather than supporting just one.  We have to be realistic.  Fortunately, the neutral financial expert normally helps both parties plan their budgets for their post-divorce lives.  That usually helps reduce the impact on day-to-day living.

So why use Collaborative?  As you can see, Collaborative Divorce may not be exactly what you expect.  Still, people are choosing the process because it is very private, they have more control over the outcome, they can create unusual provisions, it's less stressful and they can maintain civil relationships with the co-parent of their children.

Bottom Line with Collaborative Divorce:  You can get a good result if you are patient and put in the effort.

Is "Cooperative" Divorce Right for You?

Probably not, but let me explain why.

Two different approaches. If you have been researching Collaborative Divorce, you may have run across the term "cooperative divorce". Or, you may ask a lawyer about Collaborative Law and the lawyer starts suggesting cooperative divorce. While Collaborative Divorce is based on a statute in the Texas Family Code, cooperative divorce is not.  However, cooperative divorce is sometimes promoted by lawyers who either haven't been trained in Collaborative Law or who just haven't fully made the transition to Collaborative Law.

Main difference.The biggest difference between Collaborative and cooperative law is that in Collaborative Divorce, the attorneys must withdraw from representing the parties if the process breaks down and the parties head to court, while in cooperative law, the attorneys don't have to withdraw.  The Texas statute is clear that for a case to be operated under the Collaborative process, the withdrawal requirement is mandatory.  Without it, the process is not "Collaborative Law".

Reason for "cooperative". Probably the main reason why attorneys sometimes want to use the cooperative process, even if their client came in wanting a Collaborative Divorce, is  that they don't want to withdraw if the process fails.

Benefit of requiring withdrawal.  My experience is that the threat of withdrawal upon failure is one of the biggest reasons why the Collaborative process works.  If the discussions come to an apparent impasse, the parties will back up and try another approach rather than just stop and go to court.  The attorneys and other professionals don't want to lose business (and income) and the parties don't want the expense of hiring new counsel and getting them up to speed on the case.  There's also the loss of time for the transition that slows down the process.

Some other missing ingredients.The Texas Family Code provides some other benefits under Collaborative Law that are not available for cooperative divorces.

• Confidentiality.  The meetings and discussions in a Collaborative case are confidential.  They are not in a cooperative divorce.
• Privacy.  Cooperative divorce has no privacy protection.  Collaborative Divorce does.
• Discovery.  There's no requirement that information be shared freely in cooperative divorces.  In Collaborative cases, information is shared and is usually gathered and reviewed by a neutral expert.  That also doesn't happen in cooperative cases.
• Mistakes.  There's no duty to correct mistakes in cooperative cases, but there is in Collaborative cases.
• Scheduling.  The court still controls scheduling in cooperative cases.  It does not in Collaborative cases.  The independence in Collaborative cases gives the parties much more freedom to take the time they need and want to resolve the issues. 

There are other differences between the systems as well.

Is there a role for cooperative divorce?  Possibly, if the divorce is a very simple case, probably with no kids and little or no disagreements.

If there are complicated children or property issues that require a thoughtful and open approach, Collaborative Law is probably a better choice.

Misinformation About Collaborative Law

When people are considering whether to stay married or get divorced, they will often do research on what their options are.  Some people think the only choice is litigation, while others will dig a little deeper.  Unfortunately, they need to be careful where they dig.

If you are investigating your options, please spend time to look up information provided by experienced and active Collaborative lawyers.  I occasionally spend some time looking on the Internet to see what people are writing about Collaborative Law.  Sadly, there are many misstatements about different aspects of the process. The mistakes seem to always be on web sites by non-Collaborative lawyers who write a little about the topic, probably to show up in another area for search results. Generally, their conclusion is that Collaborative Law is not such a great process.

While I certainly wouldn't want an attorney to have to do a Collaborative case if he or she didn't want to, I do thing we should keep the facts straight when explaining our views to the general public.  Here are three common misconceptions that are presented about Collaborative Law.

1.  It just works for the small group of people getting divorced who get along well. Actually, while it works well in the easy cases,  it's also very helpful for people who don't get along well.

There are many reasons why people choose the Collaborative process.  They may value the privacy, or the power to make their own decisions, or the control over the scheduling, or the creativity permitted, or the assistance of a neutral financial professional or mental health professional.

People with those interests may not get along, but they see the value in the process and they see how the mental health professional keeps everyone working together effectively.

2.  If the Collaborative Law process breaks down, you can't use the documents and information that was gathered in the Collaborative case.  That's not true.  While  statements and communications are protected, the documents and agreements produced can be kept and used as the parties finish off the case in litigation.  The result:  emails and statements made at meetings are confidential and can't the used in litigation, but spreadsheets created and the underlying documents supporting them can be used.

That means that it's not a total loss, but still the parties have to slow down and go to court to finish what they were unable to agree upon. One of the main reasons why Collaborative Law usually works is that the parties don't want the expense of hiring new attorneys or the delay of waiting 30 days while everyone gets started again.

3.  The Collaborative rules remove the right to have a trial.  That's not true either.  If the process breaks down or one or both of the parties want to go to trial, the parties can have a trial, once they hire new attorneys.  In reality, trials are about the last resort for either side.  Most Judges will require the parties to attend mediation before they go to trial, and that will usually lead to settlement.  Very few people actually want to go to trial where they leave everything up to the Judge.  Most people prefer to decide for themselves how their finances and children will be handled.

There are other misstatements I see regularly when I look on the Internet, but these are some of the more frequent and relevant mistakes.

If you are seriously looking for information about your options, do yourself a favor and start by looking for information from an experienced Collaborative lawyer who actually handles Collaborative cases. 

Safe Confrontation in Collaborative Cases

Have you ever wanted to just tell off your spouse or someone else who made you angry? You may have done it from time to time, or you may have kept your feelings bottled up like many people do. Sometimes that's a good thing to do, but most often it's not handled very well and the problems escalate.

If you don't get to express yourself and address your concerns, the situation may just continue while your stress level rises.

One of the great benefits of Collaborative Law is the opportunity to learn skills to communicate better and to do so in a safe, controlled atmosphere.   Instead of just reacting and blurting out your feelings, you learn how to express yourself in a way that will be heard and respected.

Here's what we do in Collaborative cases.

• Attorneys meet and talk with their clients before and after joint meetings.  They can even pause a joint meeting and meet privately when a difficult issue comes up.  Attorneys can help their clients respond to the situation in a constructive way. As much as possible, sensitive topics are planned for.
• Attorneys also meet with the other attorney and other professionals before and after joint meetings.  They can also take a time out and meet briefly during a joint meeting so they can coordinate how to deal safely with a difficult issue.
• The neutral mental health professional (MHP) we normally use in Collaborative Law cases in North Texas works with the parties as needed on their communication skills.  The MHP also manages each joint meeting and pays close attention to the body language and mood of each of the participants.  I have had several meetings stopped by the MHP so immediate concerns about what was happening could be addressed.
• There's an emphasis on both parties learning to listen better and use language more carefully.  Learning to listen before speaking is very helpful.  Also, everyone benefits from learning to choose one's words and thinking about what is being said and how it affects others.
• Focus on the future.  We encourage the parties to not re-hash the past.  We don't need to get into assigning blame or pointing out fault for past problems.  Instead , we help the parties learn to be constructive in planning for the future.

In Collaborative cases, we don't want to suppress issues.  We do want to help the parties learn productive and safe ways to express themselves so that they can resolve problems that come up during the Collaborative process as well as  after the divorce.

Do You Really Need a Lawyer?

I recently read a divorce article  on line that I really disagreed with. The premise was that smart people didn't need to hire a lawyer to get a divorce.

The author was probably basing her ideas on how divorce works in California.  It may work there, but I still see lots of problems with DIY.  Even in California with their regimented divorce process, there are still many cases where Collaborative Law can be very beneficial.  Here in Texas, there are even more reasons to hire a lawyer and use Collaborative Law.

1.  Texas divorce forms alone are not sufficient in complicated cases.  Where there are children, you want to have enforceable and appropriate orders for access, support and decision-making.   Just taking a chance with on line forms is not a good idea.  If your order isn't drawn correctly, it's worthless at best and potentially harmful to your interests.

2.  It is very common for a party negotiating without an attorney, to get bullied or bluffed into making a very bad agreement.  It could be paying too much or receiving too little support or not getting proper value for some assets or giving up rights unnecessarily.

3.  Incorrect assumptions are often made, to the serious detriment of one of the parties.  In Texas, for example, there's no automatic 50-50 division of assets or liabilities.   Also, retirement assets may be community property which generally should be divided, but they may include some separate property that was earned prior to marriage.  Plus, how do you deal with a house that's just in one party's name?  You need lawyers to help with these issues.

4.  Few couples can work through these problems just on  their own or with a therapist or financial professional.  Mediators can help some, but mediators can't give legal advice.  No matter how smart a person is, a lawyer is important when there are hundreds of thousands or millions of dollars at risk. Most people benefit from the team of professionals used in Texas:  two attorneys, one neutral mental health professional and one neutral financial professional.

5.  You can't rely on a Judge to correct any mistakes you make in negotiating an agreement.  Judges can't give legal advice and they generally won't point out your mistakes unless something is clearly illegal.

Best bet:  talk to a Collaborative lawyer before you start. Discus the different process options  for working out the terms of your divorce. You may decide to do it yourself, but you also find out that you need help.  It's better to discover that at the beginning rather than post-divorce when you are having problems.

Considering Divorce?

'Tis the Season!

For several years, January has been a very popular month to start a divorce.  There are lots of reasons for that popularity, but mostly it seems to come down to the start of a new year being a time for fresh starts.

For those about to suggest a divorce or for those hearing about plans for a divorce from a spouse, it's time to take action.  That's true even if you don't want a divorce.  Doing nothing can be very dangerous.  With that in mind, here are five tips to keep in mind.

How to start -- The best first step is to consult with an attorney.

Yes, you may have to pay a consultation fee, but that is a small investment compared to what may be at stake.  Meet with an experienced family law attorney and find out what your options are.  There are several different processes that can be used to get a divorce, with varying degrees of cost, difficulty and damage. There's no "one size fits all".  You need to consider which way you prefer to proceed. 

Immediate concerns.  You need to think short-term to consider some of the following issues:

• Who stays in the house?
• How are the bills paid?
• What do you say to the children?
• How do you break the news to your spouse?
• How can you get along with your spouse while the divorce is pending?

Plan ahead -- things to do before filing:

• Gather records on your finances.
• Have control of some money.
• As odd as it may sound, try to be considerate and nice to your spouse. It's easier and better to divorce a friend than an enemy.
• Make a plan for where you will live and how you will separate the clothing, personal effects and furniture.
• If you have kids, plan how you and your spouse can share time and responsibility for the children.

Read up on the divorce process.

There's tons of information on line about divorce, although you should be careful to not read about other states.  Their laws are different and usually don't apply here. There's plenty of Texas information available.

Don't Do It Yourself! 

I recommend against DIY unless you have a very short marriage, AND there are no kids AND there is no property (other than personal effects) AND there are no debts.  If you have any of those, you should also have an attorney.  There's a lot to lose if you don't know what you're doing!

     
 Good luck, plan ahead and work with an attorney.

What is Family Peace Worth?

At any time of the year, it's easy to find families in turmoil.  In some cases, it gets worse around the holiday season. Even in intact families, there's often a lot conflict.  People don't get along with each other.  Sometimes disagreements can be resolved.  Counseling is a good option when the problems get more intense.  Unfortunately, counseling won't always put Humpty Dumpty or upset spouses back together again.

History shows that many people are thinking about divorce during the holidays.  Family conflicts can become unbearable,  or maybe there's just no fire anymore.  In December, between multiple religious holidays and the end of the year, many people start looking for relief by splitting up the family and terminating the marriage.

Traditionally, when people think of divorce, they picture court battles, dirty tactics and spending lots of money.  For most people, that's not appealing.  For the people who look forward to the battles, I don't have any encouragement.  My interest is in helping the people who want to avoid destruction.

People should be aware that they have a choice.  They can choose litigation and fighting, or they can focus on finding peaceful solutions through quiet negotiations around the kitchen table, in mediation or using Collaborative Law.

• Kitchen table -- With this approach, the parties meet, usually without attorneys, and directly negotiate a comprehensive agreement to settle the divorce issues.  This rarely works, but can work where there are few assets and debts and where they are not really fighting over the children.  When it does, I recommend that they consider hiring an attorney to draw up the papers. Some problems with this approach are that issues and assets may be overlooked, one side may control the information and one side may be in a more powerful role in the relationship.
• Mediation -- In Texas, most family law mediations involve both parties and their attorneys.   Having a neutral third-party mediator work with the two sides is a very effective way to resolve the case.  Before having the mediation, information must be shared. In mediation, the information is reviewed and discussed.  When the parties can agree on the facts, they can move to a final settlement. The mediator typically  moves back and forth between the two sides, carrying proposals for settlement as the parties move toward an agreement.  The process is usually successful, but often occurs many months after the divorce process began.

• Collaborative -- The Texas model for Collaborative Law usually includes a neutral therapist (MHP) working as a communication facilitator (and sometimes as a parenting plan advisor), and a neutral financial advisor (FP) who helps both parties gather and organize the relevant financial information to be used in dividing the assets and providing support for the parties and their children. Much of the preliminary work is done without the attorneys present, which saves money for the parties.                                                                                                             There will be a series of joint meetings with the parties, attorneys and the MHP and FP where issues are identified, goals are set up, information is gathered and shared, and then options are developed and agreed upon. The parties agree to not go to court.The process is usually successful, but if it breaks down, the attorneys have to withdraw (since they agreed to not go to court); that's one of the main reason the process is successful, since the parties don't want to start over with new lawyers and the original lawyers don't want to lose the business.  The result is that they don't give up easily -- they keep looking for other creative ways to settle difficult issues.

There are good and bad points about each approach.  Mostly, the best approach may depend on your situation.

• If you have the superior information or bargaining strength, the Kitchen Table may be best for you, if you can get your spouse to try it. 

• If you are in litigation, Mediation is usually the best way out. 

• If you are just starting out and want a safe, reasonable process, try Collaborative Law.

For best results, consult with an attorney to figure out the best way for you to proceed in your situation.